The Human Rights Committee,
established under article 28 of the International Covenant on Civil. and
Political Rights,

Meeting on 25 July 1983,

Having concluded its
consideration of communication No. 92/1981 submitted to the Committee by
Laura Almirati Garcia under the Optional Protocol to the International
Covenant on Civil and Political Rights,

Having taken into account all
written information made available to it by the author of the communication
and by the State party concerned,

Adopts the followings

VIEWS UNDER ARTICLE 5 (4) OF THE
OPTIONAL PROTOCOL

1.1 The author of the
communication (initial letter dated 5 June 1981 and further submissions
dated 22 October 1981 and 11 May 1982) is a Uruguayan national, residing at
present in Belgium. She submitted the communication on behalf of her father,
Juan Almirati Nieto.

1.2 The author states that
her father, a Uruguayan Civil Engineer (born on 23 June 1932), was arrested
in 1970 because he was alleged to be a member of the Movimiento de
Liberacion Nacional. Criminal proceedings were then initiated against him
for the following offences: association to break the law, conspiracy to
overthrow the Constitution, use of false identity papers, robbery and other
lesser offences such as resistance to authority. In May 1971, he escaped
from prison but on 14 April 1972 he was rearrested, kept incommunicado and
allegedly subjected to severe torture. He was then brought before the same
judge who had been conducting his trial} after examining the situation this
judge added to the list of offences already mentioned that of collaborating
in a mass escape of political prisoners (women) which had occurred a few
months before. The author adds that her father was held for short periods of
time at several detention places and then transferred to the Penal de
Libertad, where he is detained at present.

1.3 The author mentions
that, on the night of 14 April 1972, the same day that her father was
rearrested, the Executive authorities declared the "internal state of war"
and, as a consequence thereof, martial law became applicable to all
political offences. The author describes the general situation as follows,

"In July 1972, the Parliament,
subjected to strong pressures and faced with open threats of dissolution by
force, agreed to approve law No. 14,068 concerning 'Security of the State
and the Internal Order' which increased the authority of the military judges
by converting the political offences referred to in the Ordinary Penal Code
into military offences and incorporating them in the Military Penal Code,
regardless of whether those committing such offences were military personnel
or civilians, thereby violating the Constitution which did not allow
civilians to be judged by military judges... On 29 December 1975, the
Council of State (appointed by the Executive and claiming to take the place
of the Parliament elected by the people, which was dissolved at the time of
the coup d'etat of June 1973) approved law No. 14,493. That law broadened
the sphere of action of the military judges, granting them retroactive
competence to deal with political offences committed even before 14 April
1972 and entrusting to them the responsibility for dealing with all cases in
progress before the ordinary courts in which a definite and final decision
had not yet been reached... ..

"When martial law was applied
throughout the country, all kinds of defects and irregularities became
evident in the procedures of the military courts, which made a mockery of
the right to a fair and equitable trial and' the right of defence in
criminal proceedings."

The author claims that all these
developments adversely affected her father's situation.

1.4 She states that her
father continued to be under the authority of the civil judges for a long
time, because he had been arrested one day before the military -judges were
empowered to try those suspected of political offences. She further submits
that her father was sentenced by the civil judiciary, after an irregular
trial marked by the restriction of procedural rights and guarantees, to a
10-year term of imprisonment. She informs the Committee that although her
father finished serving his sentence in March 1981 (in a further submission
of 11 May 1982 she mentions 14 April 1982 as the date for this) [FN1] he is
still in prison. The author then relates the events leading to her father's
continuing imprisonment, "Suddenly, in December 1980, new criminal
proceedings were started against Almirati, this time by the military
judiciary and based on the same facts as those for which he had already been
tried and sentenced. There were no new elements or new offences other than
those which had already been investigated; some of the new accusations had
already been made in the past by the police and the security services of the
armed forces and had been rejected by the civil judiciary. Thus the sacred
principles of res judicata and non his in idem have been violated, for my
father is being tried a second time for the same acts, and all this started
10 years later, when the prisoner had three months to go to finish serving
his entire sentence. The military prosecutor is now asking that Juan
Almirati should be sentenced to 22 years' imprisonment. I must inform the
Committee that, given the situation prevailing in Uruguay, I have not been
able to obtain more information, nor, of course, a copy of the military
prosecutor's indictment, and I would therefore suggest that the Committee
should ask the Uruguayan Government to provide it and to inform it exactly
what Almirati's legal situation is, what stage this second trial has reached
and by virtue of what legal rules it is being conducted."

1.5 The author maintains
that the military judiciary lacks certain essential attributes, that it is
not independent since it depends on the Executive, that it is not..impartial
since the judges are military officials who are acting temporarily in this
capacity, and that it is not competent since the judges and prosecutors are
not required to be lawyers or practitioners of the law but merely military
officers of a certain rank, according to the importance of the court. She
further maintains that the domestic remedies which are provided for the
Uruguayan legislation cannot protect her father, because none of them is
allegedly applicable in practice if the human rights violation has been
committed by military personnel or by members of the police in connection
with State security as interpreted by the military forces.

1.6 The author alleges
that her father has been arrested, tortured, ill-treated, tried, sentenced
and kept in detention only because of his political ideas and 'that, under
the conditions in which political prisoners like her father are detained, he
has no possibility of recourse either to domestic remedies or to an
international body to seek redress for the violation of his rights.

1.7 The author alleges
that at the Penal de Libertad her father is subjected to inhuman prison
conditions. She stresses in this connection, the following points: "My
father shares a cell measuring 2 by 3.50 m with another detainee, and they
are kept in it continuously for 23 hours a day} if the weather is good and
they are not being punished, they are taken out for one hour in the open
air. Since he is being held in the part of the prison set aside for those
the military have classified as 'dangerous', my father is never taken out of
his cell to work, to eat or for anything other than exercise and visits. It
should be pointed out that the qualification 'dangerous', is the result of
an evaluation, not by the judge but by the prison commandant. The conditions
applied in this sector (the second floor of the prison) are much harsher
even than those applied to other detainees located in other sectors (the
prison population amounts at present to some 1,100 political prisoners),
which are already harsh enough. My father can study or read books only if
the commandant on duty feels like allowing it, and books are frequently
confiscated without any explanation. In any case he can read only those
books which pass the military censorship... My father is not allowed to read
newspapers because they are all prohibited, whether national or foreign} he
cannot listen to the radio, because it, too, is prohibited} all of which
naturally means that heis cut off from the world at large, thus aggravating
the tensions which are natural in a prison and forcing him to live
disconnected from the outside world." The author further alleges that
detainees live under constant fear and are subject to harrassment by the
guards who are at liberty to impose sanctions on prisoners for petty
contraventions (such as speaking with other inmates at certain times); that
from time to time a prisoner is taken out of prison and brought to military
quarters in order to be interrogated and tortured again, either in
connection with his prior conviction or with alleged political activities in
prison, and that because of this situation the physical and mental health of
detainees is seriously endangered. The author also alleges that, because of
insufficient food, her father has lost more than 15 kilos during his
imprisonment. She claims that the treatment inflicted upon her father
amounts to mental torture.

1.8 The author states that
the same matter has not been submitted to another procedure of investigation
or settlement.

1.9 The author claims that
her father is a victim of violations of articles 2 {1) and (3), 7, 10 (1)
and (3), 14 (1), (2), (3) and (7) and 26 of the International Covenant on
Civil and Political Rights.

2. By its decision of 23
July 1981, the Human Rights Committee, having decided that the author of the
communication was justified in acting on behalf of the alleged victim,
transmitted the communication under rule 91 of the provisional rules of
procedure to the State party concerned, requesting information and
observations relevant to the question of admissibility of the communication.
The Human Rights Committee also requested the author of the communication to
explain in detail which of the alleged events had taken place after 23 March
1976 (the date of the entry into force of the Covenant and Protocol for
Uruguay), including the treatment and conditions of imprisonment of her
father after that date and his access to legal counsel in connection with
the charges brought against him in the new proceedings initiated in December
1980.

3. In a further letter,
dated 22 October 1981, submitted by the author in reply to the Committee's
request for additional information, she repeated that the conditions in
which her father was serving his term of imprisonment constituted a.
deliberate form of cruel, inhuman and degrading treatment and that although
this treatment began before, it had continued after March 1976 and was still
continuing. She also repeated that the new criminal proceedings conducted
against him violate the principles of res judicata and non his in idem. The
author further stated that, when the second proceedings were begun in
December 1980, her father's defence lawyer was not informed, that he was
later presented with fairs accomplis and that, in August 1981, when her
father was taken before the First Military Court to be interrogated for the
purposes of the second trial, everything was done without the knowledge of
his defence lawyer and consequently without any possibility of his
participating and defending her father's interest.

4. The Human Rights
Committee, taking note that no submission has been received from the State
party concerning the question of the admissibility of the communication, on
the basis of the information before it, found that it was not precluded by
article 5 (2) (a) of the Optional Protocol from considering the
communication. The Committee was also unable to conclude that in the
circumstances of this case there were effective remedies available to the
alleged victim which he had failed to exhaust. Accordingly, the Committee
found that the communication was not inadmissible under article 5 (2) (b) of
the Optional Protocol.

5. On 25 March 1982, the
Human Rights Committee therefore decided:

(a) That the
communication was admissible in so far as it related to events said to have
occurred on or after 23 March 1976 (the date on which the Covenant and the
Optional Protocol entered into force for Uruguay) or which, although
occurring before that date, continued or had effects alleged to constitute a
violation after that date;

(b) That, in accordance
with article 4 (2) of the Optional Protocol, the State party should be
requested to submit to the Committee, within six months of the date of the
transmittal to it of this decision, written explanations or statements
clarifying the matter and the remedy, if any, that may have been taken by
it;

(c) That the State party
should be informed that the written explanations or statements submitted by
it under article 4 (2) of the Optional Protocol must relate primarily to the
substance of the matter under consideration. The Committee stressed that, in
order to perform its responsibilities, it required specific responses to the
allegations which have been made by the author of the communication and the
State party's explanations of the actions taken by it. The State party was
requested, in this connection, to enclose copies of any court orders or
decisions of relevance to the matter under consideration.

6. In a further letter, dated 11
May 1982, the author stressed that, as a result of the treatment inflicted
upon her father at Libertad, his health had been declining continuously and
that he was in a state of chronic malnutrition and had serious eye problems.
She further stated that:

"After ten years of
imprisonment, fresh inquiry proceedings have been initiated against him}
this is the third time that his trial has been started anew. They want to
accuse him of new offences and for this the military need witnesses to
accuse him. We all know that the passage of time is not sufficient to
protect prisoners from new offences; when a prisoner is of interest to the
militaryintelligence services, particularly when they have not managed to
cow him, as is the case with my father, completion of sentence does not lead
to release, because under this infernal machine, in which the prisoner is at
the mercy of his tormentors, he may be taken out of the prison to torture
and interrogation centres and then returned to Military Detention
Establishment No. 1 with offences on his file that equal the number of years
the regime wishes to keep him in prison."

7. In its submission
under article 4 (2) of the Optional Protocol, dated 13 August 1982, the
State party referred to the contents of an earlier note, dated 1 July 1982,
which appeared to be a late submission under rule 91 of the provisional
rules of procedure. The text of this note reads as follows:

"... the Government of Uruguay
wishes to stress that this communication is based on an unacceptable premise
in describing the person with whose situation it is concerned as a
'political prisoner'. Mr. Almirati was a member of the MLN subversive group
and participated actively in it, serving as co-ordinator of one of the
sections into which this organization was divided, known as the 'North
column'. He directed the construction of 'berretines' - hiding-places for
the concealment of weapons or persons and premises for the movement. He was
responsible for the operation in which Paysandu airport was attacked and
surrounded. He took part in the raid on an important local enterprise,
subduing the caretakers under threat of firearms. He took part in the
operation for the escape of prisoners from the women's prison. On that
occasion, he assaulted and forcibly subdued one of the police officers on
guard. It is obvious that acts of this kind cannot be considered to
constitute 'political activities', nor can their perpetrator be regarded as
a victim of persecution. Further proceedings were taker against Mr. Almirati
on 8 October 1981 for the offences of 'robbery' and 'assault on the safety
of transport'. In this communication, it is asserted that the principles of
res judicata and of non his in idem have been violated. This is untrue,
since the proceedings concerned were brought because of the emergence of
fresh evidence regarding the commission of the above offences. The fact that
these offences had been investigated by the police authorities in no way
signifies that there was any repetition of proceedings; no proceedings had
been instituted on that account, since the authorities did not possess the
evidence now available. The Government of Uruguay also wishes to stress that
this communication contains completely unfounded and meaningless statements;
for example, the assertion that martial law was introduced in Uruguay or
that the Uruguayan Parliament acted under threats. Despite the information
supplied, this Government maintains that with reference to the second
proceedings, use has not been made of the domestic remedies available to the
accused such as appeal and review."

8. In a further
submission under article 4 (2) of the Optional Protocol, dated 11 October
1982, the State party... "categorically rejects the term 'concentration
camp' used to describe Detention Establishment No. 1. In fact, far from
having such an evil status, the standard in this establishment is above the
international average for detention establishments. The system is the normal
one, and every prisoner, without exception, is given the necessary food and
attention to keep him in good physical and mental condition. Secondly, it is
emphasized that the terms 'terrible harrassment' and 'taken away and
tortured', used to describe alleged treatment to which Mr. Almirati had been
or was about to be subjected, are untrue and malicious. It must be stated
categorically that no type of physical or mental coercion is used in Uruguay
on persons under detention and that Mr. Almirati is"in prison and is unable
to enjoy normal relations with his family, not because the Government of
Uruguay so wishes, but because, as a member of the subversive Tupamaros NLM,
he committed numerous offences classified by the Uruguayan legal, system and
he was duly tried and sentenced for them. It should be emphasized, however,
that the relatives of every prisoner are permitted to make fortnightly
visits, and the visiting hours are even adjusted for those who, for
employment reasons, are unable to attend on working days. With respect to
Mr. Almirati's present state of 'chronic malnutrition', we wish to state
that the diets in Uruguayan detention establishments are prepared by
professional dietitians on the staff of such establishments. It is further
pointed out that the prisoners -themselves participate in the tasks of
preparing their food, on a group rota system. Mr. Almirati is in good health
and he has recently had a number of clinical examinations and blood pressure
tests."

9.1 The Committee decides
to base its views on the following facts which have been either essentially
confirmed by the State party or are uncontested except for denials of a
general character offering no particular information or explanation.

9.2 Events prior to the
entry into force of the Covenant

Juan Almirati Nieto was arrested
in Uruguay in 1970. Criminal proceedings were then initiated against him for
the following offences: association to break the law, conspiracy to
overthrow the Constitution, use of false identity papers, robbery and other
lessor offences such as resistance to authority. In May 1971, he escaped
from prison. On 14 April 1972, he was rearrested. The judge added to the
list of offences already mentioned that of collaborating in a mass escape of
women detainees. He was bold for short periods of time at several detention
places and he was then transferred to Libertad. He was sentenced by the
civil judiciary to 10 years of imprisonment.

9.3 Events subsequent to
the entry into force of the Covenant

Towards the end of 1980, shortly
before he was due for release upon the completion of his term of
imprisonment, new criminal proceedings were started against Juan Almirati
Nieto by the military judiciary without the knowledge of his defence lawyer
for offences alleged to have been committed prior to his imprisonment and in
respect of which new evidence was alleged to have emerged. The military
prosecutor has asked that Juan Almirati Nieto should be sentenced to 22
years' imprisonment. The Committee has received no information as to the
outcome of these proceedings or that they have been concluded.

10.1 In formulating its
views, the Human Rights Committee also takes into account the following
considerations.

10.2 In its decision of 25
March 1982, the Committee requested the State party to submit copies of any
relevant court orders or decisions. The Committee notes with regret the
failure of the State party to respond to this request.

10.3 The Committee notes
that it has been informed by the State party, in submissions of 1 July and
13 August 1982, that with reference to "the second proceedings, use has not
been made of the domestic remedies available to the accused such as appeal
and review". The Committee is unable to conclude, however, that these
remedies are available in respect of the particular violations of the
Covenant which it finds in the present case.

10.4. The Committee observes
that the State party, in its submission of..... 11 October 1982, refuted
only in general terms the author's detailed allegations that her father is
held under inhuman prison conditions at Libertad (see para. 1.7 above). The
submissions of the State party in this respect are an insufficient answer to
the allegations made. The Committee recalls its findings in other cases
[FN2] that a practice of inhuman treatment existed at Libertad prison during
the period to which the present communication relates and that it has come
to this conclusion on the basis of specific accounts by former detainees
themselves. The Committee concludes that in the present case also Juan
Almirati Nieto has not been treated with humanity and with respect for the
inherent dignity of the human person as required by article 10 (1) of the
Covenant.

10.5 Concerning the
allegation of the authors that article 14 (7) of the Covenant has been
violated by the State party because the new criminal proceedings, started by
the military judiciary against her father in December 1980, were based on
the same facts as those for which he had been tried and sentenced to 10
years of imprisonment by the civil judiciary, the State party in its
submissions dated 1 July and 13 August 1982 refuted this allegation on the
ground that "the proceedings concerned were brought because of the emergence
of fresh evidence regarding the commission of the offences of "robbery" and
"assault on the safety of transport". The Committee observes, in this
connection, that the State party has not specified what the new evidence was
which prompted the Uruguayan authorities to initiate new proceedings. In the
absence of information, as to the outcome of those proceedings, the
Committee makes no finding on the question of a violation of article 14 (7),
but it is of the view that the facts indicate a failure to comply with the
requirement of article 14 (3) (c) of the Covenant that an accused person
should be tried 'without undue delay'.

10.6 As to the allegations
made by the author with regard to breaches of articles 2 (1) and 26 of the
Covenant, they are in such general terms that the Committee makes no finding
with regard to them.

11. The Human Rights
Committee, acting under article 5 (4) of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view that
the facts as found by the Committee, in so far as they continued or occurred
after 26 March 1976 (the date on which the Covenant and the Optional
Protocol entered into force for Uruguay), disclose violations of the
International Covenant on Civil and Political Rights, particularly:

of article 10 (1), because Juan
Almirati Nieto has not been treated in prison with humanity and with respect
for the inherent dignity of the human person;

of article 14 (3) (b) and (d),
because he has not had adequate facilities for the preparation of his
defence and he has been unable to defend himself through legal assistance;

of article 14 (3) (c), because
he was not tried without undue delay.

12. The Committee,
accordingly, is of the view that the State party is under an obligation to
take immediate steps to ensure strict observance of the provisions of the
Covenant and in particular (a) that Juan Almirati Nieto is treated with
humanity as required by article 10 of the Covenant, and (b) that the
guarantees prescribed by article 14 are fully respected and, in so far as
this has not been done in-any proceedings already taken, an effective remedy
will be applied.